OR- Ore. high court: Racist, homophobic speech is protected

8-15-2008 Oregon:

PORTLAND, Ore. — Yelling homophobic or racist names is free speech protected by the Oregon Constitution if the insults don't lead to violence, Oregon’s high court has ruled.

In a unanimous ruling, the Oregon Supreme Court struck down the "abusive speech" provision of the state harassment law that prohibited insulting a person publicly in a way intended to or likely to provoke a violent response.

The problem, the court said, was the Oregon law did not require violence or even the threat of violence in order to ban insulting speech or name calling.

"Courts have long recognized that even speech that is intended and likely to produce violence may not be criminalized unless the violence is imminent," the court wrote in State v. Johnson.

The Oregon chapter of the American Civil Liberties Union said the lack of any requirement that violence be threatened was a fatal flaw in a law the ACLU warned legislators against adopting more than 20 years ago.

"The law was written broadly enough that it swept in speech that was protected as well as speech that could be threatening," said Dave Fidanque, ACLU executive director in Oregon.

William Johnson had appealed his conviction for shouting names at two women — one black and one white — who he presumed were lesbians because they had a rainbow decal on their car.

They moved in front of his pickup truck when a country road narrowed from two lanes to one in heavy traffic, and Johnson responded by calling them insulting names using amplified sound equipment.

As the rush hour traffic slowed to stop-and-go, one woman got out of the car to confront Johnson, who used a string of homophobic and racist names to insult her.

The woman testified she believed Johnson was trying to incite her to violence, but she ultimately returned to her car when her companion intervened and told her a teenager in the bed of Johnson’s pickup was swinging a skateboard in a menacing way.

In the opinion by Justice W. Michael Gillette, the court noted that, despite the profanities and racial epithets, Johnson "did not verbally threaten the woman with violence and no actual violence took place."

Gillette wrote that "harassment and annoyance are among common reactions to seeing or hearing gestures or words that one finds unpleasant."

But he added: "Words or gestures that cause only that kind of reaction, however, cannot be prohibited in a free society, even if the words or gestures occur publicly and are insulting, abusive, or both."

Fidanque called Johnson "reprehensible" and said abusive insults take a psychological toll, especially if a victim suffers them repeatedly.

"These kinds of verbal assaults cause real pain, and they have a cumulative effect," Fidanque said.

"But we can deal with racism and homophobia in our society without doing damage to the important protections of free speech," he said. ..News Source.. by First Amendment blog